Capital Paint & Glass Co. v. St. Paul Mercury Indemnity Co

• Decision Date: 15 November 1937
• Docket Number: 32871
• Citation: 176 So. 729,180 Miss. 341
• Parties: CAPITAL PAINT & GLASS CO. v. ST. PAUL MERCURY INDEMNITY CO
• Court: Mississippi Supreme Court

176 So. 729

180 Miss. 341

CAPITAL PAINT & GLASS CO. v. ST. PAUL MERCURY INDEMNITY CO

No. 32871

Supreme Court of Mississippi

November 15, 1937

Division B

Suggestion Of Error Overruled January 10, 1938.

APPEAL from the circuit court of Hinds county HON. J. P. ALEXANDER Judge.

Action by the Capital Paint & Glass Company against the St. Paul Mercury Indemnity Company. From a judgment on a directed verdict for defendant, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Harold Cox, of Jackson, for appellant.

The conduct and declarations of appellee's adjusters are competent to prove ultimate facts in issue.

A conversation or other communication between an agent and the party dealing with him, while not evidence of the agent's authority, is admissible to show the understanding of such party on the subject, his good faith, and that he was justified in treating the agent as such.

2 C. J., page 942, sec. 703, page 932, sec. 688 page 939, sec. 695, and page 962, sec. 733; 22 C. J., page 289, sec. 318.

An agent having general authority to compromise or make settlements of claims or accounts for his principal has implied power to do the usual and necessary things to effect such compromise or settlement, and, where the settlement is within the apparent scope of the, agent's authority, the principal is bound thereby, especially where he accepts and retains its benefits.

2 C. J., page 652, sec. 298, and pages 570-573, sec. 211.

The agency of this adjuster is made so by statute.

Where general authority is established, and the act of the agent is not shown to be of an unusual or extraordinary character, the presumption is that the agent had authority to do such act, and the burden of proof is then upon the principal to show that he had not such authority.

2 C. J., page 920, pages 925-26, sec. 665.

An admission of an agent may be received in evidence against his principal, where the agent, in making the admission, was acting within the scope of his authority, and the transaction or negotiation to which the admission relates was pending at the time when it was made.

22 C. J., pages 386-88, sec. 460-61, and page 367, sec. 440; National Bank of Metropolis v. Kennedy, 21 L.Ed. 554; 3 Current Legal Thought, No. 8, page 702; McClave Brooks Co. v. Belzoni Oil Works, 113 Miss. 500, 74 So. 332; Western Union Tel. Co. v. Walters, 106 Miss. 59, 63 So. 194; Pennington v. Peoples Bank, 132 Miss. 23, 95 So. 694.

The appellee is shown liable to the appellant by the evidence for the amount in suit.

G. & S. I. R. R. Co. v. Magee Warehouse Co., 109 Miss. 9, 67 So. 648; 2 R. C. L., page 776, sec. 33; Allen Gravel Co. v. Nix, 93 So. 244, 129 Miss. 809; 7 R. C. L., page 590, sec. 581; Jackson v. I. C. R. R. Co., 76 Miss. 607, 24 So. 874; Meder v. Superior Oil Co., 151 Miss. 814, 119 So. 318; Russell v. Palatine Ins. Co., 106 Miss. 290, 63 So. 644; 14 R. C. L., page 871; 2 Am. Jur., sec. 97, page 79.

Here we have an adjuster, in fact several adjusters, sent to appellant's place of business for the sole purpose of looking after the adjustment and settlement with this injured employee. Each of these adjusters in turn agreed that the appellant should be reimbursed for the salary paid such employee for the benefit of appellee so as to enable said adjusters to settle said claim.

Unless otherwise agreed, authority to conduct a transaction includes authority to do acts which are incidental to it, usually accompany it, or are reasonably necessary to accomplish it.

A. L. I., Agency, sec. 35, page 89, sec. 50, page 125, and sections 160, 161; London Guaranty Co. v. Miss. Cent. R. Co., 97 Miss. 165, 52 So. 787; New Amsterdam Co. v. East Tennessee Tel. Co., 139 F. 602; Fairly v. Nash, 70 Miss. 193, 12 So. 149; Barton-Parker Mfg. Co. v. Moore, 71 So. 909, 111 Miss. 662.

The authority of the adjuster to have made the contract in suit cannot be doubted.

German-American Provisions Co. v. Jones Bros. & Co., 87 Miss. 277, 39 So. 521; Thos. McFarland Lbr. Co. v. Selby, 129 Miss. 894, 93 So. 434.

This agreement with appellant was necessary and incidental to the discharge by the adjuster of his duties in connection with the adjustment. The injured employee himself frankly stated that appellee would have been unable to settle with him for his injuries except for the fact that appellant paid said employee's salary throughout such time. The appellant is entitled to be reimbursed by the appellee on its oral agreement so to do, whereunder and whereby appellant was induced to pay said salary. This contract was made under necessitous circumstances by appellee's adjuster for its benefit. It has reaped all of the benefits therefrom by having made a settlement with said employee by reason thereof. This agreement for appellee to reimburse appellant for said salary paid said employee does not infringe upon any provision of the policy of insurance, but is wholly independent thereof. The testimony of appellant's manager in this record is uncontradicted, and it was not for the court to say that appellant was not entitled to a judgment, if no further evidence were offered by the appellee.

Rothenberg v. Packard, 97 Miss. 428, 52 So. 458; New Amsterdam Cas. Co. v. East Tenn. Tel. Co., 139 F. 602; Lusk-Harbison-Jones, Inc. v. Universal Credit Co., 164 Miss. 693, 145 So. 623.

Under the facts of this case, the appellee is estopped at every stage to deny its liability to the appellant, regardless of any authority to said agents to have made the agreement in suit with the appellant. The appellee was notified on every term of appellant's agreement that it should be reimbursed for the salary paid Rhymes.

Strauss Bros. v. Denton, 140 Miss. 745, 106 So. 257; 2 C. J., page 920, sec. 649, page 929, sec. 681; Metzger v. Southern Bank, 98 Miss. 108, 54 So. 241.

Watkins & Eager, of Jackson, for appellee.

It is apparent that appellant by the terms of the contract was definitely advised and knew that it had no authority to effect any financial settlement "except at the assured's own cost," and further knew in like manner the provisions of the contract that it was not subject to change or alteration in any respect except by written endorsement "signed by the President, a Vice-President, Secretary or an Assistant Secretary of the company," and that "notice to or knowledge possessed by" any alleged agent or other person would not waive, alter or change the contract, and as to which it was expressly agreed that all of the terms of the contract were embodied in the written policy agreement.

It is thus apparent that any contention that McCormick or any of the other adjusters could be held to have been acting within the apparent scope of their authority is wholly inapplicable because the assured was put on express notice by the terms of the exact policy contract which he relies on for recovery that the adjusters possessed limited authority and had no authority whatsoever to make any agreement other than is set forth in the policy contract, as to which separate agreements the company could only be bound by the officers therein named.

The question of apparent scope of authority and ostensible authority is in no wise involved because the policy contract gave full and complete notice as to the limited authority of the adjuster.

A. L. I., Agency, sec. 35, page 89, sec. 50, page 125.

Of necessity, any cause of action claimed by appellant must be dependent upon the terms of the policy contract made an exhibit to the declaration.

Mutual Life Ins. Co. v. Hebron, 166 Miss. 145, 146 So. 445.

Of course it is elementary that the appellant was bound by the terms of the policy contract, which it had had in its possession for some nine months before the accident occurred.

Home Mutual Fire Ins. Co. v. Pittman, 111 Miss. 425, 71 So. 739; Mixon v. Sovereign Camp W. O. W., 155 Miss. 848, 125 So. 113; Maryland Cas. Co. v. Adams, 159 Miss. 88, 131 So. 544.

The authority of an agent who writes a policy of insurance terminates when the policy is delivered to the assured.

Interstate Fire Ins. Co. v. Nelson, 105 Miss. 437, 62 So. 425; Stewart v. Coleman & Co., 120 Miss. 28, 81 So. 653; Connecticut Fire Ins. Co. v. Harrison, 173 Miss. 84, 161 So. 459.

OPINION

Anderson, J.

Appellant brought this action against appellee in the circuit court of Hinds county on an indemnity insurance policy,...